Judge: David B. Gelfound, Case: 23CHCV00101, Date: 2024-09-23 Tentative Ruling

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Case Number: 23CHCV00101    Hearing Date: September 23, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL DEPOSITION ATTENDANCE OF A PERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS OF DEFENDANT AMERICAN HONDA MOTOR CO., INC.; AND REQUEST FOR SANCTIONS

Motion filed: 6/4/24

MOVING PARTY: Plaintiffs Manuel Rangel Quintero and Miriam Mayoral Hernandez (“Plaintiffs”)

RESPONDING PARTY: Defendant American Honda Motor Co., Inc. (“Defendant” or “AHM”)

NOTICE: OK.

RELIEF REQUESTED: An order from this Court to compel the attendance of Defendant AHM’s Person Most Qualified (“PMQ”). Plaintiffs also request the Court to impose monetary sanctions against AHM and its attorney of record in the amount of $2,940.00.

TENTATIVE RULING: The motion is GRANTED. The Request for Monetary Sanctions is GRANTED IN PART.

BACKGROUND

Plaintiffs filed this Song-Beverly Consumer Warranty Act (“Song-Beverly Act”) lawsuit over alleged defects in their 2018 Honda Odyssey with VIN: 5FNRL6H74JB103086 (the “Subject Vehicle”), which was manufactured by Defendant AHM. Plaintiff purchased the Subject Vehicle on August 30, 2021, entering into an express warranty agreement with AHM. (Compl. ¶¶ 8-9.)

On January 13, 2023, Plaintiffs initiated the action against AHM and Does 1 through 10. The Complaint alleges two causes of action: (1) Violation of Song-Beverly Act – Breach of Express Warranty, and (2) Fraudulent Inducement – Concealment.

On June 29, 2023, the Court sustained AHM’s demurrer with 30 days to amend as to the Complaint’s second cause of action and granted AHM’s motion to strike any claim for punitive damages in the Complaint’s first cause of action. (6/29/23 Minute Order.)

On August 10, 2023, Plaintiffs filed their operative First Amended Complaint (“FAC”), alleging against AHM and Does 1 through 10: (1) Violation of Song-Beverly Act – Breach of Express Warranty; and (2) Fraudulent Inducement – Concealment.

Subsequently, on January 24, 2024, the Court sustained without leave to amend AHM’s second demurrer, filed on September 14, 2023, to the FAC’s second cause of action. The Court further granted AHM’s motion to strike Plaintiffs’ request for punitive damages in the FAC. (1/24/24 Minute Order.) Following this, on February 23, 2024, AHM filed its Answer to the FAC.

On June 4, 2024, Plaintiffs filed the instant Motion to Compel Deposition Attendance of AHM’s PMQ and custodian of records (the “Motion”).

Subsequently, on July 12, 2024, Plaintiffs filed their Notice of Defendant’s Non-Opposition to the Motion.

On July 15, 2024, AHM filed its Opposition, to which Plaintiffs replied on September 16, 2024.

ANALYSIS

To compel the deposition of a party to an action or its officer, director, managing agent, or employee, the deposing party need only serve a notice in compliance with Code of Civil Procedure section 2025.240. (Code Civ. Proc., § 2025.280, subd. (a).) Nothing further is needed. If, after service of the deposition notice, the deponent fails to appear “without having served a valid objection under Section 2025.410 ...” the deposing party may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

A.    Procedural Requirements

1.      Meet and Confer

"Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.¿(Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.)

Here, on April 3, 2024, Plaintiffs served AHM with an Amended Notice of Deposition for the deposition of AHM’s PMQ and custodian of records, for a deposition date of May 1, 2024. (Lupinek Decl., ¶ 4, Ex. “A.”) On April 16, 2024, AHM served its written objection to the deposition notice. (Id. ¶ 7, Ex. “C.”) In response, Plaintiffs sent AHM a meet and confer letter discussing the issues raised in AHM’s objection. (Id. ¶ 8.)

On May 1, 2024, after AHM’s PMQ failed to appear at the deposition, Plaintiffs’ counsel sent AHM an email offering an additional three business days to provide dates for the deposition. (Id. ¶ 10.)  On May 21, 2024, Plaintiffs sent a follow up email to AHM, seeking dates for the deposition. However, they have not heard responses from AHM. (Id. ¶ 11.)

Based on these records, the Court concludes that Plaintiffs have made good faith attempts to reschedule and resolve the issues.

2.      Separate Statement

The California Rules of Court rule 3.1345 (a)(5) explicitly states that “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: ... (5) To compel or to quash the production of documents or tangible things at a deposition[.]”

Here, Plaintiffs have fulfilled the requirement by concurrently filing a separate statement with the Motion.

B.     Motion to Compel Deposition of AHM’s PMQ

Code of Civil Procedure section 2025.280 subdivision (a) provides that service of a deposition notice “is effective to require any deponent who is a party to the action [] to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.”

An objection under Code of Civil Procedure section 2025.410 must be written and served “at least three calendar days prior to the date for which the deposition is scheduled,” and pertains to an “error or irregularity” with the notice itself. (Code Civ. Proc., § 2025.410, subd. (a).) The procedure for a deponent who seeks to narrow the scope of a discovery request is to move for a protective order. (Code Civ. Proc., § 2025.420, subd. (a).)

It is important to note that objections alone do not stay the taking of the deposition. To do so, the objecting party should move to quash the deposition notice and stay the taking of the deposition. (See Code Civ. Proc., § 2025.410 (c), [“In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.”])

Here, AHM’s objections are not rooted in any “error or irregularity” within the deposition notice itself. Furthermore, AHM has not filed a motion to stay the taking of the deposition or to quash the deposition notice. Although AHM claims that it is not refusing to provide a PMQ for the deposition, its inability to promptly respond or schedule a date acceptable to Plaintiffs’ counsel – attributed to AHM’s logistical challenges, while notable (Opp’n. at pp. 3-4, Dowling Decl. ¶ 14) – does not suffice as a valid legal basis to override Plaintiffs’ rights to conduct necessary discovery under the statute.

Accordingly, Plaintiffs are entitled to the deposition of AHM’s PMQ upon serving AHM with the valid Amended Notice of Deposition on April 3, 2024.

Therefore, the Court GRANTS the Motion to Compel Deposition Attendance of AHM’s PMQ.

C.    Request for Monetary Sanctions

If a motion to compel a party deponent to appear for a deposition is granted, the court must impose a monetary sanction "in favor of the party who noticed the deposition and against the deponent . . . unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Code Civ Proc., § 2025.450, subd. (g)(1).)

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work in preparing the Motion is $1,350.50, calculated at a reasonable hourly rate of $450.00 for 3 hours reasonably spent.

Therefore, the Court GRANTS IN PART Plaintiffs’ request for monetary sanction, awarding $1,350.00 in favor of Plaintiffs.

CONCLUSION

The Court GRANTS Plaintiffs’ Motion to Compel Deposition Attendance of Person Most Qualified of Defendant American Honda Motor Co., Inc.

Defendant American Honda Motor Co., Inc. is ordered to produce its Person Most Qualified for deposition within 30 days.

Plaintiffs’ Request for Monetary Sanctions is GRANTED IN PART.

American Honda Motor Co., Inc. and its attorney(s) of record are ordered to jointly and severally pay $1,350.00 to Plaintiffs’ Counsel.

Moving party to give notice.